February 2015

Remember to Believe: Forgetting Might Kill You (Or Your Case)

“Whether you think you can or you can’t, you’re right.”- Henry Ford

Henry Ford was on to something when he said those words. Something so powerful there is even a scientific name for it: The Placebo Effect. One of the early scientists to identify the power of placebos was Dr. Henry K. Beecher. In his 1955 publication The Powerful Placebo, Beecher describes how soldiers receiving saline solution instead of morphine still experienced pain releif. He further went on to explain how this effect was observed 35.2% of the time. That is powerful medicine, but what does it have to do with law?

At the end of the day, an attorney has to be able to convince a jury that they are right. More importantly, the attorney must believe in their ability to do that. It is easy to go with the flow and say “that is a crummy case” or give up when pitted against forces that loom large in comparison. But think of Victor E. Frankel, a noted neurologist and psychiatrist who survived the holocaust concentration camps. In his book, Man’s Search for Meaning, Dr. Frankel describes one prisoner who had a vision, in February of liberation on March 30th, but died on March 30th when the liberation did not come. Frankl writes,”to those who know how close the connection is between the state of mind of a man – his courage and hope, or lack of them – and the state of immunity of his body will understand that the sudden loss of hope and courage can have a deadly effect.” Only when the man gave up his belief in liberation did he succumb to sickness and death.

I am not saying all you have to do is believe you have a case or believe you will win and let the money roll in. Certainly there are lawyers who don’t really believe in their case and still win. And actually there is a real need for that in criminal law where a client may confess to their attorney that they are, in fact, guilty of the crime. The lawyer is required to keep that attorney-client communication confidential and make the State prove it’s case. If belief in innocence was needed, then there would be a lot of unrepresented defendants. (Representing individuals attorneys know are guilty in a later post) What I am saying is that an attorney who can sense a wrong, and believes in their ability to fix it has a better chance (maybe 35.2%) at actually fixing it.

I think about that when I take on a case. I did that when I took on one of my first cases in law school. A foreclosure case. I read through close to one thousand pages of security transaction documents to find the one piece of information that helped me right a wrong. I believed in my abilities when I took on domestic violence cases as a prosecutor. Instead of cases being dismissed when it was a male victim, or when the female victim didn’t show, we tried them. Sometimes the defendant was acquitted. But the fact that there was even one conviction of those types of cases was virtually unheard of.

So, find a lawyer that believes in their abilities. Not overconfident, but one that is willing to dig a little deeper before throwing in the towel. Someone that has that american can-do attitude that Henry Ford expressed over 100 years ago. Because even if your attorney doesn’t have those abilities, the placebo effect is real and might help win your case.

Lawyers: Winging It Since 1850

“If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.” That is an excerpt from Abraham Lincoln’s notes in preparing a lecture to a group of young lawyers. Then, as well as now, the ‘Unprepared Lawyer’ is a topic of much debate.

Recently, the lawyers for Jerry Sandusky claimed they were not prepared to go to trial and were often times “flying by the seat of their pants.” While that case went to trial, other attorney’s have refused to try a case they were unprepared for and put in jail for their refusal.

Arguably, there is a big difference between the two cases linked above. Sandusky was arrested and charged on November 5, 2011 and the trial began on June 11, 2012. Whereas, Public defender Brian Jones was assigned the case the day before trial. But they illustrate a point, lawyers are often unprepared for a trial date. Sometimes, circumstances are outside their control, i.e. when a judge is unreasonable and won’t grant a continuance. Sometimes, it is because they simply choose to wing it.

I have tried cases and argued motions where the opposing counsel didn’t bring a copy of the exhibits, didn’t interview our main witness before trial, or didn’t research the law in New Mexico. Sometimes, their unpreparedness didn’t matter and they didn’t suffer any consequences. But, sometimes, their motion was denied outright.

A common saying by law school instructors and law practitioners is, “I may not be the smartest lawyer, but I will be the most prepared.” Being prepared separates the good lawyers from the great ones. For example, a good lawyer might be able to say ,”Judge, I think there is a case out there on that issue saying the DOT has a legal duty.” That attorney might be right. And if they have a reputation for being smart, the judge might believe them.

A great lawyer will say, “Judge, Lujan v. NMDOT, decided August 4, 2014 by the New Mexico Court of Appeals in paragraph 32 upheld that the DOT has a duty to use ordinary care to remove hazards from the road. I have provided defense with a copy and I have a highlighted copy for the court. May I approach the bench?” That attorney is right, and they can prove it.

By the way, here is a link to that case.

Part of my experience as a young lawyer has been the absolute requirement of having this level of preparation when going to court. A young lawyer can’t rely on perceived credibility, they have yet to establish it. There is a reason that advertisements put lab coats on regular citizens or why some people don a fake pair of spectacles or put a touch of grey in their hair. These ‘tricks’ to make a person seem more credible may work some of the time, but they cannot prevail against an attorney who is prepared. If they do, there is usually an appeal. That’s why as a lawyer, you have to have done the research. Research is time consuming and, as Lincoln said, can be a drudgery.

A friend of mine often said whenever I asked him a question I didn’t know, “well, let’s consult the law.” I hated that answer at the time, but not being “exempt from the drudgery of the law” made me better prepared when I found the answer. Those attorneys who do that, can better represent you and expose lawyers who are just winging it.

So, make sure your attorney isn’t relying on her reputation or his natural abilities. Read up on the issues in your case in the helpful links page of this blog. Ask your attorney some well thought out questions and see if they have the answers or more importantly, if they will find out the answers to questions they don’t know.

"I know a guy, who knows a guy"

If you haven’t watched Breaking Bad and you don’t know the fictional lawyer Saul Goodman, check out his real website. But anyone who has seen Jim Carrey in “Liar Liar” knows that Saul Goodman is just the latest in a long line of fictitious attorneys who skirt the law to help their clients. So this stereotype of the shady lawyer must have a basis in reality somewhere right? Yes it does.

In fact, Facebook has it’s own page dedicated to the top ten shady lawyers. Paul Bergrin, to name one of them, is currently serving a life sentence for crimes ranging from prostitution to conspiracy to commit murder of a witness. Here are some more details about him. But don’t be fooled, dishonest lawyers have been around since Abraham Lincoln’s time. See his notes to young attorneys archived in the library of congress. “There is a vague popular belief that lawyers are necessarily dishonest” Lincoln states in his lecture. The same could be said almost 200 years later, just look at the popularity of shows like Better Call Saul. A Google search for “do i need a shady lawyer” can bring up dozens of results.

Why do people root for characters like Saul Goodman? Maybe its because the ‘shady’ lawyers seem to know the loopholes. And maybe that is ultimately what matters: knowledge of the law. Knowing what is legal, what isn’t, and what is in the grey area is fundamental to the practice of law. Some lawyers make their entire living by arguing in the grey area. You might say that without a grey area, maybe we wouldn’t need lawyers, everything would be clear cut. Does that mean being ‘shady’ comes with the job? That depends on the definition of shady. Would you consider this billboard a shady advertisement?

The thing is, he is right. Just because you did it, doesn’t mean you’re guilty. You’re innocent until proven guilty. I have tried a number of criminal cases where I had great evidence that someone had beaten up their spouse and committed domestic violence. But, when the victim doesn’t testify, that prevents key evidence from being presented and a not guilty verdict would sometimes follow. The same principle applies for civil law. An attorney who understands legal principles like the one in the billboard above can represent you better.

So, don’t go looking for a ‘shady’ attorney. You might end up being the one cheated and you definitely don’t want to be involved in the disciplinary hearings that are likely to follow when your attorney ends up like Paul Bergrin. Instead, look for an attorney that knows the law isn’t always black and white, can argue it well, and follows Lincoln’s advice to always be honest.

Morning Coffee Makes You Rich, Right?

“My sister had a case where she stubbed her toe and they gave her $50,000”. This statement or something like it perpetuates the idea that obtaining a large amount of money for a relatively minor injury occurs often and easily. The quintessential example of this is the “Hot Coffee” case.

If you haven’t read the case in law school you can read the wikipedia article on the case of Liebeck v. McDonald’s Restaurants. Without all the facts, you might believe the popular myth that you can get a million dollars from spilling coffee on yourself. It’s true, she spilled the coffee on her thigh and inner leg area. It is also true that she was awarded $2.86 million in damages. That’s the extent of what most people can remember about the case.

But what really happened? Stella Liebeck had third degree burns on her legs, lost 20 pounds while in the hospital while undergoing multiple skin grafts, and initially only asked McDonalds for $20,000 to cover her medical costs of about $18,000. McDonalds offered $800. The plaintiff (Ms. Liebeck’s attorney) asked the jurors to award 2 days of coffee sales (in 1994) to Ms. Liebeck for her extensive injuries. $2.7 million.

They did! Case closed! Not really. The Defense appealed the decision and the award was reduced to about half a million. While an appeal of that decision was pending, the case settled for an undisclosed amount. Even if you think your case might be worth ‘big money’ there is always potential a judge can strike it down later on even if you win.

But judges are reasonable, right? They know how much the case is worth, right? Maybe, and most do, but this bit of news should trouble us all. A judge took a bribe to reduce an award in a negligence case. A rare event to see something like this in the news, but still concerning.

So what is the takeaway? There is no slam dunk case and you never know what a jury (or judge) is going to do. What you can do is find an attorney who knows the nuances and facts that lead to substantial awards. An attorney who is up to date on legal issues and trends will be more likely to ignore antiquated notions like the one likely told to plaintiff lawyers in Liebeck’s case that New Mexico courts had never found for a plaintiff in a products liability case. Until they gave out a 2.8 million dollar award.